Introduction
The Eswatini Criminal Procedure and Evidence Act provides guidance on the nature of punishments that can be given. These are imprisonment, declaration as a habitual criminal, fines and putting the accused person under recognisance.
The wildlife laws conform to these guidelines and provide for pecuniary, custodial and administrative penalties. Pecuniary penalties include fines and forfeiture, custodial penalties include imprisonment and administrative penalties include compensation, restitution and withdrawal of permits and licences.
Fines in Eswatini
The Criminal Procedure and Evidence Act is the guiding statue on issuance of fines as a penalty in Eswatini. The law allows for recovery of fines by attachment and sale of any movable property belonging to the offender. If the proceeds of sale of the movable property are insufficient to satisfy the amount of the court may issue a warrant for the levy of the amount unpaid against the immovable property of the offender.
The law also allows for payment of fines in installments. The court may in its discretion order that any fine imposed on a convicted person be paid in installments or otherwise on such dates and over a period not exceeding twelve months from the date of such order. The Criminal Procedure and Evidence Act further provides that an offender is subject to imprisonment in default of payment of a fine.
The wildlife laws provide for fines for offences against wildlife and habitats. The laws provide for maximum fines or a minimum and maximum fine range. The Game Act and Flora Protection Act provide for minimum and maximum fine ranges and the National Trust Commission Act, Private Forests Act and Wild Birds Protection Act provide for maximum fines.
The Game Act provides for the highest fines among all the wildlife laws which is a maximum of E30,000 (USD 2092.16). The highest fine under the National Trust Commission Act is E1,000 (USD 69.73), the highest fine under the Flora Protection Act is a maximum of E2,500 (USD 174.35), the highest fine for offences against wildlife under the Private Forests Act is E40 (USD 2.79) and the highest fine under the Wild Birds Protection Act is a maximum of E50 (USD 3.49).
Imprisonment in Eswatini
Depriving a convicted offender of his liberty is yet another penalty under Eswatini wildlife laws. The Constitution provides that no person shall be deprived of his or her personal liberty save as may be authorised by law in execution of the sentence or order of a court in respect of a conviction of a criminal offence. The Constitution further provides that in computing the prison term of an offender, any period that the offender spent in lawful custody in respect of that offence before the completion of his trial shall be taken into account.
The Criminal Procedure and Evidence Act gives guidance on issuance of prison sentences. It prohibits Magistrate’s Courts from imposing prison sentences of less than four days unless the sentence is that the offender be detained until the rising of the court. Further, a sentence of imprisonment shall take effect from and include the whole of the day on which it is pronounced unless the court, on the same day on which sentence is passed, expressly orders that it shall take effect on an earlier date to that on which it is pronounced.
Some of the wildlife laws provide for a minimum and maximum range of prison terms while others just provide for maximum. The highest prison term is under the Game Act for offences against protected game. The Game Act provides a mandatory minimum of 5 years imprisonment and a maximum of 15 years imprisonment without the option of a fine.
The Flora Protection Act also provides for a minimum and maximum range. The highest prison term under the Flora Protection Act is a term of not less than three months and not more than two years. The highest prison term under the National Trust Commission Act is a maximum of 3 years, under the Private Forests Act is a maximum of 2 months and under the Wild Birds Protection Act is a maximum of 3 months.
Forfeiture in Eswatini
The general guidelines as to criminal forfeiture in Eswatini are to be found in the Criminal Procedure and Evidence Act. After the conclusion of any trial and subject to any special provision contained in any law, the court may make a special order as to the return to the person entitled thereto of the property in respect of which the offence was committed or of any property produced at such trial. If no such order is made the property shall, on application, be returned to the person from whose possession it was obtained unless it was proved during the trial that he was not entitled to such property.
Further, the court convicting any person of any offence which was committed by means of any weapon, instrument or other article produced to it may, if it thinks fit, declare such weapon, instrument or other article to be forfeited to the Government.
The procedure for effecting a forfeiture order is that at any time after the making of the order, the court may inquire into and determine any person’s rights to the property in question. If any person feels that the forfeiture order is adverse to him, he may appeal as if it were a conviction. If upon appeal the forfeiture order is set aside or varied after the sale of the forfeited property, the owner may enforce his rights against any person in possession or custody of the property or claim from the Government an amount equal to the value of the property.
The wildlife laws provide for either instrumentality or subject matter forfeiture or both.
The Game Act provides that any person convicted of an offence thereunder shall forfeit to the government any firearm, ammunition, weapon, animal, vehicle, vessel or aircraft which was in his possession at the time of the commission of the offence. Any such firearm, ammunition, weapon, animal, vehicle, vessel or aircraft shall be disposed of by public auction by order of the court after proper advertisement, whether or not the convicted person is the owner of the item unless such item is proved by its owner to have been stolen and that the theft has been reported to and duly recorded by the police. Further, no firearm, ammunition, weapon, animal, vehicle, vessel or aircraft seized by a game ranger or any person acting under his direct authority, or by a police officer, in respect of any alleged contravention the Act, shall be released by the court unless the accused is acquitted.
The National Trust Commission Act provides for forfeiture to the government of any weapon, explosive, trap or poison used in connection with the commission of an offence. Further, any vehicle, aircraft, vessel, animal, including a domestic animal, material or article used in connection with an offence may also be forfeited to the government unless it is proved that the person convicted is not the owner of the item and that the owner thereof could not have prevented its unlawful use by the person convicted.
The Flora Protection Act provides that the court may in addition to any other punishment, order that any protected or indigenous flora in respect of which the offence was committed be forfeited to the government. The court may also order forfeiture of any vehicle, object or animal used in the commission of an offence under the Act.
Forfeiture under the Private Forests Act does not require a criminal trial resulting in the finding of guilt on the part of the accused person. The Act gives forest officers the powers to seize any forest produce in respect of which such officer has reason to believe that an offence has been committed and to seize any weapon, vehicle, instrument, animal or any other thing which such officer has reason to believe has been used in the commission of an offence.
The forest office shall then report any seizure made to the District Commissioner who may, if he thinks fit, declare the seized property to be forfeited to the government. Such a forfeiture declaration, however, should not affect any rights which any other person may have in the property if it is proved that the person did not know that such property was being used in the commission of an offence.
The Wild Birds Protection Act does not provide for forfeiture.
Administrative Penalties in Eswatini
The Criminal Procedure and Evidence Act provides that if any person has been convicted of an offence which has caused personal injury to some other person or damage to or loss of property belonging to some other person, the court may award the injured party compensation for such injury, damage or loss upon conviction of the accused person.
The Game Act provides for compensation as an additional penalty for the offences of hunting specially protected game or royal game without a permit and trading in their products without a permit. Such compensation shall be made to the owner of the game or, if ownership of the game cannot be established, to the owner of the property where the game was hunted, and where the owner of such game or property cannot be determined, such replacement or compensation shall be made to the Government.
The Safeguarding of Swazi Areas Act provides for compensation to the King for any damage caused by hunting in a Swazi Area. The King is required to distribute the amount paid to him as compensation among the Swazis who appear to have been affected by such damage or shall otherwise apply such amount for the benefit of such Swazis according to his discretion.
The wildlife laws also provide for cancellation or withdrawal of licences and permits as an administrative offence. The Flora Protection Act provides that the Minister may cancel a permit issued under the Act where he has reason to believe that the holder does not comply with the conditions of such a permit. Further the court may order the cancellation of a permit issued under the Act in addition to any other penalty that may be given.
Penalties for Subsequent Offenders
The wildlife laws also provide for stiffer penalties for second or subsequent offenders in Eswatini. This is to deter persons from becoming habitual wildlife offenders. The Game Act provides that any person who has previously been convicted of an offence under the Act shall, upon a second or subsequent conviction, be sentenced to the maximum penalty prescribed in relation to the offence for which he is charged. The National Trust Commission Act also provides for enhanced penalties for subsequent offenders. The Flora Protection Act provides for a prison sentence of 2 years for any person who commits a second or subsequent offence thereunder.
Suspension of Sentences in Eswatini
The Criminal Procedure and Evidence Act allows for suspension of sentences. A court which has convicted an offender may pass sentence, but order that the operation of the whole or any part of such sentence be suspended for a period not exceeding three years. The Game Act on the other hand provides that no sentence or part of any sentence imposed under any of its provisions in respect of any offence shall be suspended by the court. This is to ensure that offenders under the Act serve the prescribed penalties under the law.
